Tyler

I concur in reversing the judgment and order herein, on the ground that the *239 decision of the court below is not justified by the evidence. Conceding that the evidence would have been excluded on objection that it was incompetent, for the reason that it tended to change the terms of a written agreement, yet, as it went in without objection, the court below was bound to consider it and give it its due weight. I know of no rule of law which justifies any court in disregarding evidence of the character introduced in this case, because if objected to it would have been ruled out. It was before the court on the trial of this case, and demanded consideration as much as the written agreement or any other matter testified to on the trial.

Further, .1 am of the opinion that plaintiff was entitled to recover the twelve hundred dollars at the end of the sixty days. The twelve hundred dollars to be paid Tyler under the express terms of the contract, “ in any event,” referred to the twelve hundred dollars mentioned first in the contract, which sum was advanced by plaintiff, and was to be paid him “in any event”; that is to say, whether or not the thirty thousand shares were sold within the…

This action was brought to recover the sum of twelve hundred dollars, which Tyler claimed Smith and Stone had borrowed from and promised to repay him in sixty days from the date of the loan. Judgment passed for the defendants, from which and an order denying a new trial the plaintiff appeals.

The written contract, which is made an exhibit to the complaint, and offered in evidence, under the terms of which Tyler makes his claim, is:—

According to its terms, it is plain that Tyler was, at the end of sixty days, to be repaid the twelve hundred dollars he had loaned, in any event, whether the pooling arrangement was successful or not.

The evidence of Tyler and Smith, one of the defendants, corroborated the unambiguous language of the contract. Stone’s testimony was contradictory to that evidence in some respects, although it did not attempt to deny the acknowledgment of indebtedness and promise on his part to repay the twelve hundred dollars.

There is no reason made apparent why the written contract should not be controlling in the matter. It is not susceptible of any other construction than that which the plaintiff puts upon it. It explains itself fully and clearly, and by it…